Rational Security vs. Symbolic Security

So much for concurring opinions . . . I’ve been attacked by not only one co-blogger, but two. Earlier on, I posted a critique of the court’s decision upholding the NYC subway searching policy against a Fourth Amendment challenge.

Jason Mazzone argues that I’m ignoring a key benefit of the search policy:

The overriding goal of all of these efforts is prevention. The police are no longer charged simply with responding to crimes that have occurred. To succeed, they must stop terrorist attacks before they occur.

The City has taken the view, reasonable in my opinion, that prevention is aided by demonstrating on a regular basis the power of the City’s security forces. Such a demonstration combines awe with surprise.

First, I question whether such demonstrations of force are likely to deter the terrorists, who continually seek to infiltrate the hardest of targets rather than the unfortified ones. The terrorists focus a lot on airplanes, where the security is rather tight compared to many other tragets. So I wonder whether such demonstrations of force really deter terrorists. Perhaps the show of force gives people a sense of security, which, although illusory, is nevertheless comforting. But if this is the goal, should it be a legitimate government policy to create an illusion?

Jason’s argument reminds me of the armed military personnel patrolling airports after 9/11 with machine guns. The guns were unloaded, and the troops were there primarily as symbols of strength. All this cost money, money that wasn’t spent on addressing the real vulnerabilities of air travel. I guess the question is whether it is better to have rational security or symbolic security. My vote is for rational security.

I believe that terrorism is already receiving a disproportionate amount of resources. In an earlier post, I counted 2928 fatalities from terrorism on US soil (9/11, the first WTC bombing, the Oklahoma City bombing, the Unabomber, and the Olympic Park bombing). I then argued:

The total is 2928 fatalities. This has occurred over the past 15 years. That’s about 195 lives per year. Now, consider other risks. Flu deaths are estimated to be around 30,000 to 40,000 in a good year. Terrorism is nowhere near this danger level. Another 40,000 die in auto accidents each year. On the scale of things, dying from terrorism is a very tiny risk. . . .

Certainly, we should guard against terrorism, but rarely do discussions about the sacrifice of civil liberties explain the corresponding security benefit, why such a benefit could not be achieved in other ways, and why such a security measure is the best and most rational one to take.

What is troubling is that the government could reduce many risks we face if it expended more resources to address these risks. The government could do quite a lot to prevent flu deaths, such as subsidize more vaccines. . . . Instead, because terrorism is dramatic and gets lots of news coverage (like shark bites), it gets a disproportionate amount of attention. . . .

There are certainly grave risks from terrorism, and we should not ignore these risks. But we must prioritize risks. Even focusing on terrorism alone, we must recognize that not all terrorist risks are the same. . . . In my view, the most serious risks of terrorism include nuclear or biological weapons. . . .

The obvious effective way to combat nuclear terrorism seems to be preventing nuclear material from getting into the hands of terrorists. . . .

Therefore, perhaps we’re misapplying our resources. We should be working harder on tracking down loose nukes. If we want to protect the subways, perhaps more narrow means can be employed, such as the use of bomb sniffing dogs. But an expensive symbolic show of force that is highly invasive of people’s liberties strikes me as a very unwise use of our limited security resources.

Turning to Dave Hoffman, he argues that my critique of the court’s deference is misplaced because “the court deferred to the government’s experts because they were significantly better informed about the relevant risks than plaintiffs’ experts.” It may be the case that the plaintiffs’ experts weren’t as convincing as the government’s, but this is no excuse for deference, which is according the government’s side with a special presumption of correctness and being reluctant to question the government’s positions. In essence, when the court says it is deferring, it is saying that it is already beginning the case in a biased manner, not a neutral one. The court was highly skeptical of the plaintiffs’ experts but didn’t seem to employ the same degree of skepticism with regard to the government’s.

Dave also argues:

Dan’s second argument concerns the value of marginal deterrence of attacks on the subway. He wonders: “[i]s it a victory to stop a terrorist from bombing a subway car and killing 40 people so that the terrorist decides instead to blow up a building or mall killing thousands?” This is obviously a tough choice, on many levels, and it is cold blooded and unpleasant to contemplate. . . . But it is a decision I ultimately think ought to be left to democratic policy-makers in the sunlight of the public space, and not ill-informed judges in the quiet of the judicial chambers.

If such decisions are left solely to the other branches of government, then what’s the role of the courts in applying the Fourth Amendment? Is there much of a role left? The same kind of arguments have often been made in support of government policies. Consider the arguments made when the Supreme Court upheld the Japanese Internment in WWII in Korematsu v. United States, 323 U.S. 214 (1944):

[Korematsu] was excluded because we are at war with the Japanese Empire, because the properly consituted miliary authorities feared an invasion of our West Coast and felt constrained to take proper security measures . . . and finally, because Congress, reposing its confidence in this time of war in our military leaders–as inevitably it must–determined that they should have the power to do just this.

In Hirabayashi v. United States, 320 U.S. 81, 93 (1943), the Supreme Court stated: “[I]t is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.”

Under Dave’s argument, the Fourth Amendment wouldn’t play much of a limiting role on what law enforcement officials can do. We should rely on the political process. If people don’t like it, then kick the policymakers out of office. But the issue I raised in connection with Jason’s arguments returns here — policymakers might easily adopt symbolic security measures that are invasive of civil liberties yet create the illusion of security. People might falsely think they’re more secure when they’re not. And there’s little check on policymakers here. Moreover, this argument assumes that any burden in civil liberties is equally distributed among all New Yorkers. I doubt this. And if civil liberty burdens are not equally distributed, then it’s possible for majorities to impose disproportionate burdens on minorities even with democratically-elected leaders.

I believe that such programs such as the NYC subway searches — ones that dispense with individualized suspicion — are particularly troublesome especially in light of our open way of life in this country. The very “show of force” that Jason extols has another impact he doesn’t mention — it is also a display of police power to all people. Totalitarian societies also would engage in such displays of power — as a way of programming the population for greater social control and acceptance of that way of life. Jason writes glowingly of “high-tech surveillance,” “city commando teams,” “roadblocks,” “heavy weaponry,” “[c]ity blocks . . . cordoned off,” and “helicopters buzzing overhead.” This description evokes Orwell’s Big Brother, not New York City.

12 Responses

Attacked? No way. But you are still wrong, I think. Hope to post more tomorrow (if readers appear interested in yet more of this!). I wonder, though, whether you are similarly suspicious of deference to the government in the ordinary Chevron-agency context? w/respect to the SEC? An AUSA requesting an extension of time to file a brief?

Dave — Yes, attacked, on the very place where I blog, on my own soil. . . . I know you mentioned a few points in agreement, but I’m focusing on where we diverge. “Attacked” is more dramatic and exciting than “disagreed with somewhat.”

I’m generally not a big fan of deference. As I explain to Mike in the comments to my earlier post when he asks me about my views on Commerce Clause deference, my answer is that the focus of my views about deference concern mainly the Bill of Rights. That’s the focus of my article The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 Iowa L. Rev. 941 (1999).

As far as Chevron deference, I don’t know enough about the cases and issues to cast more than just a “gut opinion.” My inclination is to disfavor deference, as it is often practiced as a shortcut for engaging in meaningful judicial review.

As for the AUSAs, I believe that the courts should threat them the same as any other litigant, and not give them special deference. That said, courts should be respectful of attorneys and the pressures they face.

This is one reader who would be interested in seeing more of this debate. It’s not often that one-person gets to take on two and wax them both so decisively.

The anti-deference law review is fantastic and Mazzone is out of it if he thinks subways searches demonstrate “awe and surprise.” Thanks for the adaptation of the ad agency pro-war slogan “shock and awe,” but it’s not “awe-inspiring” to see cops rumaging through old ladies’ purses or racial profiling and it’s not “shocking” if they tell everybody that they’re going to be doing it. And how exactly do you put a foot down along the slippery slope towards cavity searches? That’d send a signal too, right? Why not do it? It’s all about image and deterrence, right?

Mazzone is also being batted around on the comments section of his Dec. 5th post. Public approval means that the search passes 4th Amendment muster? Come on.

There has been an interesting debate over the past couple of days between the authors of the Concurring Opinions blog regarding the wisdom of police conducting random searches on the NYC subway system. The debate centres on whether such searches:

The very “show of force” that Jason extols has another impact he doesn’t mention — it is also a display of police power to all people. Totalitarian societies also would engage in such displays of power — as a way of programming the population for greater social control and acceptance of that way of life.

YES! YES! YES! This is so important. We so rarely acknowledge that we’re doing any harm to our society when we let soldiers loose to march through the streets.

The gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself. I believe that Dave mischaracterizes my arguments in a several places and exaggerates some of my…

The gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself. I believe that Dave mischaracterizes my arguments in several places and exaggerates some of my claims….

There’s a fine debate — ahh, hell, call it a mêlée — going on over at the malapropblog, Concurring Opinions. A recent decision upholding the legality of random searches of New York City subway passengers set off the infighting. Here’s…

Dan, I missed your earlier post, and I sympathize with the sentiment: flashy but small risks tend to attract a disproportionate response than huge but boring risks. Sharks are a great example: vastly more people drown, and drowning is I’m sure a terrifying experience, but the risks of drowning receive nowhere near the attention the avg. 4 US deaths per year from sharks do. Reminiscent of your post, during the DC sniper shootings I compared the death rate from the snipers (9 fatalities in 13 days at that point) with the expected number of automobile fatalities in the DC metropolitan area for the same period. Auto accidents kill at (as best I recall) nearly 4 times the rate the snipers were going. That said, I too avoided suburban gas stations just like everyone else. As Scully says in one episode of the X-Files: “Yes, I’m afraid. But it’s an irrational fear.”

Still, I think terrorist attacks have some features sharks and flu and even snipers lack. For one thing, they’re localized in ways that, say, flu deaths are not. Second, they cause not merely death, but significant economic and social disruption as well, in addition to destruction of infrastructure. Third, part of the power of terror attacks in general, and al-Qaeda attacks in particular, is that they are sharply discontinuous, meaning that they create significant fear of the unknown. Years can go by without an incident, but when one occurs, it is unclear whether it is just one (Oklahoma City), one of four (as on 9/11) or one of ten. But I think the fourth difference is the most significant: terrorist attacks carry a symbolic significance most other hazards, even other murders, lack. Indeed, that’s the whole purpose of most attacks. Preventing such attacks may therefore be worth investments far greater than the expenditures that would prevent an equal number of deaths from other causes.

The gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself. I believe that Dave mischaracterizes my arguments in several places and exaggerates some of my claims….